10th Circuit Hears University of Tulsa Rape Case

DENVER (CN) – The University of Tulsa barred a student from referencing her attacker’s sexually violent past in his disciplinary hearing after he raped her, attorneys told the 10th Circuit Court of Appeals Wednesday morning.

In January 2014, Abigail Ross – who was then a college sophomore – told school officials that Patrick Swilling, Jr., a member of the TU basketball team, had raped her. When the university refused to take past allegations of sexual assault perpetrated by Swilling into account at his disciplinary hearing, Ross sued.

Although TU suspended Swilling from the basketball team, it also cleared him of all violations.

In April 2016, U.S. District Judge Terence Kern of the Northern District of Oklahoma sided with the university, saying the school had gone through the correct channels to address Ross’s allegations.

“A jury could not conclude that TU acted intentionally or recklessly in response to Ross’s report,” she stated in her 43-page opinion. “Nor could a jury find that its conduct was extreme and outrageous. TU suspended Swilling from the basketball team, conducted an investigation, and held a student conduct hearing.”

Ross appealed the decision.

Representing Ross at Wednesday’s hearing before 10th Circuit Judges David Ebel, Paul Kelly and Robert Bacharach, John Clune argued that the University of Tulsa had failed to take “multiple reports” of Swilling’s sexual misconduct into account, including an incident in 2012 in which the school “closed the case that same day.”

“Ross was raped by the same individual,” Clune said.

But John David Lackey argued on behalf of the school that it had not treated Ross maliciously, adding that it wasn’t the University of Tulsa’s “school policy not to do the right thing.”

Instead, Lackey said, the school had addressed Ross’s claims at the hearing.

He added that evidence from the 2012 incident was impermissible because the alleged victim had failed to report the assault to a higher-ranking officer – and by the time the information reached officials who could take corrective action, her story had changed.

“The info being imported up this chain was that it was a consensual act,” Lackey said.

According to Lackey, the case rested on a failure to report the alleged 2012 crime to an “appropriate person” in the school’s Department of Safety.

Judge Bacharach brought up campus documents that appeared to be arrest records suggesting that any campus police officer might have the authority to act on the victim’s allegations.

“I see campus public officer forms that ask for date of arrest,” Judge Bacharach said. “Are [they] authorized to make arrests?”

“[Campus police] do not have state powers to make those kinds of arrests,” Lackey said.

While Clune agreed that not all campus officers were equipped with the authority to make arrests, he said they could have done more than they did.

“They can investigate,” Clune said. “They can’t take corrective action.”

Clune is with Hutchinson, Black and Cook in Boulder, Colorado.

Lackey is with Paul and Lackey in Tulsa.

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